The H-2A labor certification allows agricultural employers to bring nonimmigrant foreign workers to the U.S. to perform services of a temporary or seasonal nature. The certification is valid for up to 364 days and the employer should file requests for the certification at least 45 days before it is needed.
The employer must meet two basic requirements:
- it must demonstrate that it has only a temporary need for the type of services or skills to be performed by the aliens; and
- it must demonstrate that U.S. workers are not available who are unemployed and qualified to fill the position. In addition, the aliens must have a foreign residence that they have no intention of abandoning, and must intend to depart the U.S. at the end of their temporary stay.
A job is seasonal when it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels far above those necessary for ongoing operations. A job is temporary when the employer’s need to fill the job with a temporary will last no longer than one year. An employer may obtain extension of the H-2A status, but an alien who has held H-2A status for a total of three years may not be granted H-2A status until he or she remains outside the U.S. for an uninterrupted period of six months.